Kennedy claims ‘fundamental inconsistencies’ in evidence to DPP and as given to Mahon tribunal

The Circuit Court will have to reconsider whether it is necessary to take sworn testimony from former Government press secretary Frank Dunlop before the trial of businessman James Kennedy on charges relating to alleged corrupt payments.

Mr Kennedy, Cormorant Quay, Gibraltar, has denied 16 charges, including giving sums of money to certain politicians as an inducement or reward for voting in favour of motions to rezone certain lands at Carrickmines, Co Dublin, in 1992 and 1997. The chief prosecution witness is Mr Dunlop and the case is due to be heard in June.

Mr Kennedy claims Mr Dunlop has given contradictory accounts related to the issues and he sought to have him provide sworn evidence before a District Court judge for use in the criminal proceedings.

Last December, Judge Martin Nolan in the Circuit Court refused to make an order under the 1967 Criminal Procedure Act requiring Mr Dunlop to give evidence by sworn deposition but Mr Kennedy challenged that refusal in High Court proceedings.

Incorrect test
Mr Justice Gerard Hogan yesterday found Judge Nolan applied the incorrect legal test when refusing the order and sent the matter back to the Circuit Court for reconsideration.

Judge Nolan refused the order after holding there must be a risk of an unfair trial before a person must be deposed and there was no such risk in Mr Kennedy’s case.

Mr Justice Hogan said that was too restrictive an approach and the incorrect test.

The power to use depositions is designed for cases where either the prosecution or defence can fairly demonstrate the procedure may be of significant benefit to them, he said.

While it was true Mr Kennedy’s right to a fair trial would not be jeopardised if Mr Dunlop were not deposed or if the relevant law on depositions did not exist, it did exist and therefore the High Court must ensure the procedure is properly employed.

The central issue was under what circumstances should a court hearing a criminal action be prepared to direct that a witness be deposed in advance of that trial.

Contradictory accounts
In this case, it was accepted that Mr Dunlop had given contradictory accounts of his activities.

Any person in Mr Kennedy’s position would like to know what version Mr Dunlop would actually proffer at the criminal trial and that factor would have to be considered in any application to have Mr Dunlop deposed.

In his action, Mr Kennedy had claimed evidence from Mr Dunlop to the Mahon tribunal was inconsistent with, and contradicted, Mr Dunlop’s witness statement provided for the DPP’s case against Mr Kennedy. Mr Dunlop must be deposed to reconcile the “fundamental inconsistencies”, Mr Kennedy claimed.

If Mr Dunlop agreed in his deposition that the correct version of events was that given by him to the Mahon tribunal, a number of charges against Mr Kennedy must fall, Declan McGrath SC, for Mr Kennedy, had argued.

It was also argued that Mr Dunlop should be deposed on grounds his statement of evidence was “very spartan and sketchy” as to the circumstances under which certain alleged payments were made.